Other Sources of International Law
Other Sources of International Law
Statute of the ICJ, Article 38(1) The Court…shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
International Custom
principles that are customarily applied among states may be binding upon states that are not parties to the treaties or conventions from which the principles arise
International custom requires:
Objective element
Subjective element --”opinio juris”
[and no persistent objection]
Examples
All states considered bound by a jus
cogens or peremptory norm –e.g.,
“no slavery”
International norm preventing discrimination on basis of sex in transmitting citizenship to children
US persistently objecting to 18 as minimum age for soldiers
General Principles
Gap-filling
Drawn from national legal systems
Mostly procedural, jurisdictional, administrative, but also fairness
Examples
state responsibility for acts of agents estoppel waiver reparations
How to find custom and general principles of IL?
Look at STATE PRACTICE
State practice = “any act or statement by a state from which views about customary law may be inferred.” (Akehurst)
Sources of state practice
treaties decisions of national and international courts national legislation opinions of national legal advisors diplomatic correspondence practice of international organizations and more…
Key Source
Sources of State Practice in
International Law (Ralph Gaebler
& Maria Smolka-Day, eds.)
Example of national source:
US Sources
American State Papers: Documents,
Legislative and Executive, of the Congress of the United States http://memory.loc.gov/ammem/amlaw/l wsp.html
Papers Relating to the Foreign Relations of the United States
Foreign Relations of the United States
(Washington, DC: GPO, 1861-) http://www.state.gov/www/about_state/history/frus.html
Legislation concerning a country's international obligations
treaty-implementing legislation -e.g., for CITES (treaty on endangered species) other topics --search for relevant legislation
United Nations Legislative Series
Practice of international organizations
Resolutions, declarations of IGOs
UN, UN subsidiary bodies, regional bodies
Example: UN resolutions on use of force, used by ICJ in Nicaragua case to show norm of CIL.
Finding the practice
Digests of practice in international law. Example: Whiteman, Digest
of International Law.
Restatement of the Law, Third,
Foreign Relations
Repertories of IGOs. Example:
Repertory of Practice of United
Nations Organs
Finding the practice –continued
Yearbooks of IGOs, countries
British Year Book of International Law
Yearbook of the United Nations
UN resolutions –search via
UNBISnet --http://unbisnet.un.org
Writings of Publicists
Most highly-qualified
Authors of long-standing treatises
Scholarly organizations (e.g.,
American Law Institute)
Judicial decisions
Not binding, but
Can express and shape CIL
International tribunals
National tribunals (courts)
How to find decisions
Search databases (e.g., ICJ decisions on Westlaw or Lexis;
International Law Reports, Oxford
Reports on International Law)
Use indexes and digests (e.g.,
World Court Digest)
Use secondary sources
Making life easier
Secondary sources
Encyclopedias
Encyclopedia of Public International Law
Texts/treatises
Customary International Humanitarian Law
Articles
Sixty Years in Limbo: The Duty of Host States to Integrate Palestinian Refugees under
Customary International Law, 81 N.Y.U. L.
Rev. 351 (2006)
Review of some key sources
http://www.youtube.com/watch?v=
KPvN9TrxHhs
